State v. George

• Decision Date: 11 March 1922
• Docket Number: No. 2810.,2810.
• Citation: 243 S.W. 948
• Parties: STATE v. GEORGE.
• Court: Missouri Court of Appeals

243 S.W. 948

STATE v. GEORGE.

No. 2810.

Springfield Court of Appeals. Missouri.

March 11, 1922.

Rehearing Denied March 11, 1922.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Tony George was convicted of selling whisky in local option territory, and he appeals. Affirmed.

Henson & Woody, of Poplar Bluff, for appellant.

David W. Hill, of Poplar Bluff, for the State.

FARRINGTON, J.

The defendant was charged and convicted in the circuit court of Butler county with having sold a half pint of whisky on the 18th day of September, 1919, in violation of section 6598, R. S. of Missouri of 1919, in which county the local option law had been adopted.

There are but two questions raised by the defendant on this appeal. The first one is that the evidence tending to show that he had made the sale, as charged, was of no probative force and insufficient to sustain a conviction. We cannot sustain this contention, because witnesses were produced by the state who testified positively that the whisky was purchased from this defendant at the time and place stated, and that he had no license or legal light to make such sale.

The main point stressed in the brief of appellant is that there could be no conviction under the state local option laws of Missouri for the sale of this whisky in. September, 1919, because the national government had passed what was known as the War-Time Prohibition Act (Comp. St. Ann. Supp. 1919, §§ 3115 11/12 f-3115 11/12h); the contention being that the act of Congress of November 21, 1918, became effective, on the 1st day of July, 1919, and that it superseded all state laws on the subject.

A number of cases are cited by appellant under the Commerce Act (24 Stat. 379), which hold that Congress, having invaded the field of interstate commerce, holds that field exclusively. These cases, however, are inapplicable here, because the identical question here has been passed upon by courts of many states, and the effect of the unanimous holding seems to be that both the War-Time Prohibition Law and the adoption of the Eighteenth Amendment and National Enforcement Act under the same, known as the Volstead Law (41 Stat. 305), do not repeal state prohibitory laws, which have for their purpose the prohibition of the sale of intoxicating liquors. This identical question has been definitely settled in the case of State v. Hosmer, 144 Minn. 342, 175 N. W. 683, wherein the Supreme Court of Minnesota held that the War-Time Prohibition Act of Congress did not limit the operation of the statute of the state to matters prohibited by the act of Congress, and that the state statute remained in full force. To the same effect is the holding of the Supreme Court of Vermont, in the case of Ex parte Guerra, 94 Vt. 1, 110 Atl. 224, 10 A. L. R. 1560, and in the case of State v. Fisher (Del. Gen. Sess.) 111 Atl. 432, the Supreme Court of Delaware held likewise.

There is a perfect wealth of authorities which hold that the Eighteenth Amendment does not repeal state prohibitory laws which are not inconsistent with the amendment and the National Enforcement Act. See: Alexander v. State, 148 Ark. 491, 230 S. W. 548; Ex parte Crookshank (D. C. S. P. Cal.) 269 Pac. 980; Ex parte Volpi (Cal. App.) 199 Pac. 1090; State v. Ceriani, 96 Conn. 130, 113 Atl. 317; State v. Fisher (Del. Gen. Sess.) 111 Atl. 432; Johnson v. State, 81 Fla. 783, 89 South. 114; Wood v. Whitaker, 81 Fla. 653, 89 South. 118; Hall v. Moran, 81 Fla. 706, 89 South. 104; Burrows v. Moran, 81 Fla. 662, 89 South. 111; Jones v. Ricks, Sheriff, 150 Ga. 657, 104 S. E. 771; Smith v. State, 150 Ga. 775, 105 S. E. 364; Edwards v. State, 150 Ga. 754, 105 S. E. 365; Scroggs v. State, 150 Ga. 753, 105 S. E. 363; Bryson v. State, 27 Ga. App. 230, 108 S. E. 33; Neville v. State, 152 Ga. 205, 108 S. E. 802; Voils v. Comm., 187 Ky. 526, 219 S. W. 1079; City of Shreveport v. Marx, 148 La. 31, 86 South. 302; Ulman v. State, 137 Md. 642, 113 Atl. 124; State v. Brothers, 144 Minn. 337, 175 N. W. 685; Meriwether v. State, 125 Miss. 435, 87 South. 411; Kyzar v. State, 125 Miss. 79, 87 South. 415; State v. District Court, 58 Mont. 684, 104 Pac. 308; Ex parte Rankin (Nev.) 199 Pac. 474; People v. Foley, 113 Misc. Rep. 244, 184 N. Y. Supp. 270; People v. Mason (Co. Ct.) 186 N. Y. Supp. 215; State v. Colera (N. J. Sup.) 114 Atl. 241; State v. Pore, 180 N. C. 744, 105 S. 71. 334; State v. Muse, 181 N. C. 503, 107 S. E. 320; Comm. v. Vigliotti, 271 Pa. 10, 115 Atl. 20; State v. Hartley, 115 S. C. 524, 106 S. B. 766; Franklin v. State, 88 Tex. Cr. R. 342, 227 S. W. 486; Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199; Ranks v. State, 88 Tex. Cr. R. 80, 227 S. W. 670; Russell v. State, 88 Tex. Cr. R. 582, 228 S. W. 948; Robert v. State, 88 Tex. Cr. R. 488, 228 S. W. 230; Reese v. State, 88 Tex. Cr. R. 569, 228 S. W. 562; Franklin v. State, 89 Tex. Cr. R. 252, 230 S. W. 692; Thomas v. State, 89 Tex. Cr. R. 609, 232 S. W. 826; Ex parte Guerra, 94 Vt. 1, 110 Atl. 224, 10 A. L. R. 1560; Allen v. Comm., 129 Va. 723, 105 S. E. 589; State v. Turner, 115 Wash. 170, 196 Pac. 638; State v. Woods, 116 Wash. 140, 198 Pac. 737; State v. Stephens, 116 Wash. 558, 200 Pac. 310; State v. Knosky, 87 W. Va. 558, 106 S. E. 64.2; Ex parte Ramsey (D. C.) 265 Fed. 950; Woods v. City of Seattle (D. C.) 270 Fed. 315; Ex parte Finegan (D. C.) 270 Fed. 665.

We are cited by respondent to the case of Mattison v. State, 3 Mo. 421. On investigation we find that this case was overruled in the case of In re Truman, 44 Mo. 181. The only case which we have been able to find which holds that the prohibitory laws of a state are repealed, by the...